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PAc-22 Faculty Discipline and Removal for Cause

Policy: PAc-22
Subject: Faculty Discipline and Removal for Cause
Approval Date: 06/18/17       
Revision Date: 08/08/19
Last Review Date: 08/08/19
 
PURPOSE
 
The purpose of this policy is to establish the procedures for the discipline of faculty and librarians (henceforth referred to as faculty).
 
GENERAL PRINCIPLES
 
Faculty misconduct may be subject to disciplinary action. Disciplinary actions include oral or written reprimand, written censure, suspension without pay, reassignment of duties, removal, or an action appropriate to the conduct of the faculty member (henceforth, the accused). The length of written censure, suspension without pay, reassignment of duties or other discipline will be in accordance with the severity of the misconduct and in consideration of the accused's work record.
 
Tenured faculty may be removed only for incompetence, neglect of or refusal to perform duties, or immoral conduct as outlined in KRS 164.360 (henceforth, cause).
 
Disciplinary action for tenured faculty will be taken subject to the procedures set forth in this policy. Disciplinary action for fixed term faculty will proceed under this policy if the fixed term faculty member is to be disciplined or removed during the contract year. If a faculty member is tenure track, this policy shall apply if the faculty member is to be disciplined or removed during the academic period(s) for which he/she is guaranteed employment under PAc-27.
 
All individuals involved in the disciplinary process will exercise absolute discretion. Information gathered during the disciplinary process by any individual will be disseminated by that individual only as stipulated by university policy or by law.
 
All documents that need to be delivered from one party to another shall be by hand delivery or priority mail with delivery confirmation.
 
REPRESENTATION
 
At any point in the disciplinary process, the accused may, at his or her expense, consult with or retain legal counsel to provide representation.

RECONCILIATION
 
At any point in the disciplinary process, the accused or representatives of the administration may request a meeting with the other for the purpose of discussing a mutual settlement. A mutual settlement must be in writing and signed by the accused and the President. A mutual settlement will terminate the disciplinary process.
 
ALLEGATIONS OF MISCONDUCT
 
An allegation of misconduct brought to the attention of a supervisor within the accused’s chain of authority will be forwarded to the Dean of the accused's college and to the Provost/Vice President for Academic Affairs. If the allegation involves Sexual Misconduct or Sexual Harassment as governed by PG-6 and relevant UARs, then the allegation will be handled in accordance with same. Otherwise, the Provost and Vice President for Academic Affairs will determine if investigation of the allegation is required.
 
If the Provost/Vice President for Academic Affairs determines that investigation of the allegation is not required, the Provost and Vice President for Academic Affairs will refer the matter to the Dean of the accused's college. The Dean will determine whether to issue an oral or written reprimand or to dismiss the allegation. The Dean's action will terminate the disciplinary process.
 
If the Provost and Vice President for Academic Affairs determines that investigation of the allegation is required, the matter will be referred by the President to the appropriate University offices for investigation. The period of investigation will not exceed 40 business days. (A “business day” is a day in which the University is open regardless of whether academic classes are in session.) If deemed necessary by the President, the accused may, without prior notice, be placed on leave with pay or have his or her duties reassigned. Leave with pay will not extend beyond completion of the disciplinary process. Reassignment of duties will not extend beyond completion of the disciplinary process except if reassignment of duties is the disciplinary action issued by the President at the completion of the disciplinary process. The President may terminate leave with pay or reassignment of duties prior to completion of the disciplinary process.
 
At the conclusion of an investigation, a written report will be produced and sent to the President, the Provost and Vice President for Academic Affairs, and the Dean of the accused's college. After reviewing the report, the Dean will inform the foregoing individuals in a signed, written statement that:
 
Facts have not been established to support the allegation and the matter should be dismissed; or
 
Facts have been established that warrant an oral or written reprimand by the Dean; or
 
Facts have been established that warrant written censure, suspension without pay, or reassignment of duties or other appropriate discipline; or
 
Facts have been established that warrant removal for cause.

NOTICE OF INTENT
 
After reviewing the Dean's statement, the President—in consultation with the Provost and Vice President for Academic Affairs, the Dean of the accused's college, the Department Chair/Associate Dean of the accused's department, and the Chair of the Faculty Rights and Responsibilities Committee—will determine whether:
 
To dismiss the matter altogether, thereby terminating the disciplinary process; or
 
To refer the matter to the Dean of the accused's college for issuance of an oral or written reprimand, in which case the action will terminate the disciplinary process; or
 
To proffer charges warranting written censure, suspension without pay, reassignment of duties or other appropriate discipline, in which case the President will issue a signed, written Notice of Intent to Discipline; or 
 
To proffer charges warranting removal for cause, in which case the President will issue a signed, written Notice of Intent to Remove for Cause.
 
A Notice of Intent will include (1) a detailed statement of the charges and their basis; (2) the intended disciplinary action, (3) the proposed date of the action, and, if applicable, the proposed duration of the action; (4) the accused's right to respond to the charges and intended disciplinary action; (5) the accused's right to request a hearing before a board; (6) the accused's right to request a meeting with representatives of the administration for the purpose of discussing a mutual settlement, and (7) the relevant policies dealing with faculty discipline.
 
If a Notice of Intent is issued by the President, the Provost and Vice President for Academic Affairs will provide the accused with a copy of the Notice of Intent.
 
RESPONSE TO NOTICE OF INTENT
 
If the accused receives a Notice of Intent to Discipline, the accused may elect to:
 
1a. Exercise his or her right to an evidentiary hearing before a Faculty Hearing Board according to the procedures set forth below;
 
2a. Respond to the charges and intended disciplinary action, and decline a hearing; or
 
3a. Neither respond to the charges and intended disciplinary action nor exercise his or her right to a hearing.
 
If the accused receives a Notice of Intent to Remove for Cause, the accused may elect to:
 
1b. Exercise his or her right to either (i) an evidentiary hearing before a Faculty Hearing Board with a subsequent hearing on the record (not evidentiary) before the Board of Regents according to the procedures set forth below, or (ii) an evidentiary hearing before the Board of Regents with no hearing before a Faculty Hearing Board;

 
2b. Respond to the charges and intended disciplinary action, and decline a hearing; or
 
3b. Neither respond to the charges and intended disciplinary action nor exercise his or her right to a hearing.
 
The accused will have 10 business days from the date of receipt of the Notice of Intent to elect one option (1a, 2a, 3a, 1bi, 1bii, 2b, or 3b) and to inform the President, the Provost/Vice President for Academic Affairs and the Dean of the accused's college, in writing, of the option elected. If the accused fails to inform the foregoing individuals of the option elected within the allotted time, then the accused will have passively elected option (3a) for a Notice of Intent to Discipline or option (3b) for a Notice of Intent to Remove for Cause.
 
If the accused elects option (3a), the President will proceed with the intended disciplinary action outlined in the Notice of Intent and so advise the accused in writing. A copy shall be sent to the Provost and Vice President of Academic Affairs, Dean and Office of Human Resources. If the accused elects (3b) the President shall proceed to an abbreviated hearing before the Board of Regents.
 
If the accused elects option (2a) or (2b), the accused may file a detailed written response to the charges and/or intended disciplinary action within thirty (15) business days of receipt of the Notice of Intent. The accused will send his or her response to the President, the Provost and Vice President for Academic Affairs, and the Dean of the accused's college. The President will review the accused's response and may consult with the Provost and Vice President for Academic Affairs, the Dean of the accused's college, the Department Chair/Associate Dean of the accused's department, and/or the Chair of the Faculty Rights and Responsibilities Committee, among others. The President will determine whether to:
 
Dismiss the matter altogether, thereby terminating the disciplinary process;
 
Refer the matter to the Dean of the accused's college for issuance of an oral or written reprimand by the Dean, in which case the Dean's action will terminate the disciplinary process; or
 
Proceed with a disciplinary action no greater than the intended disciplinary action outlined in the Notice of Intent. If the disciplinary action that the President decides upon is not removal for cause, then the President will issue a signed, written Notice of Disciplinary Action to be sent to the accused. If the President determines that removal for cause should occur, he/she shall forward, to the Board of Regents, the Notice of Intent to Remove for Cause and the accused's response to the charges and intended disciplinary action outlined in the Notice of Intent and proceed to an abbreviated hearing before the Board of Regents.
 
If the accused elects option (1a) or (1bi), the President will convene a Faculty Hearing Board.
 
If the accused elects option (1bii), the President will convene a hearing before the Board of Regents.

 
 
THE FACULTY HEARING BOARD (FHB)
 
Membership
 
The Faculty Hearing Board will consist of the following voting members:
 
One member of the Faculty Rights and Responsibilities Committee chosen by that committee’s chair. The member chosen from that committee will serve as Chair of the Faculty Hearing Board; and
 
Four tenured faculty members holding an academic rank equal to or higher than that of the accused and who will be selected and agreed upon by the President or his/her designee, the Provost and Vice President for Academic Affairs, the Chair of the Faculty Rights and Responsibilities Committee, and the Chair of the Faculty Senate.
 
The Provost/VPAA will select one individual to serve as a non-voting, ex officio member of the Faculty Hearing Board. That individual must be an Academic Dean not of the accused's college or a Department Chair/Associate Dean not of the accused's department. In addition, the Provost/VPAA and the Chair of the Faculty Senate may serve as non-voting, ex officio members of the Faculty Hearing Board.
 
No member of the Faculty Hearing Board will be a member of the accused's department or school.
 
Faculty Hearing Board members shall be excused due to conflict of interest and may be excused due to health or unavoidable absence from campus. If a member is excused, a replacement will be selected as set out above.
 
Pre-Hearing Procedure
 
The Chair of the Faculty Hearing Board will provide the accused with a signed, written Notice of Hearing. The Notice of Hearing will state (1) the names of the Faculty Hearing Board members; (2) the accused's right to challenge the appointment of one or more Faculty Hearing Board members on the grounds of conflict of interest; and (3) the date of the hearing.
 
The accused will have 5 business days from the date of receipt of the Notice of Hearing to challenge the appointment of one or more Faculty Hearing Board members on the grounds of conflict of interest. The challenge must be submitted in writing to the Chair of the Faculty Hearing Board who will rule on the challenge within 5 business days of receipt of the challenge. If the challenge is to the Faculty Hearing Board Chair, the Chair of the Faculty Rights and Responsibilities Committee shall rule in that instance. The Chair will inform the accused in writing of the ruling and the reasons for the ruling. The ruling will be final and may not be challenged by the accused.
 
The date of the hearing will be no less than 15 business days and no more than 30 business days from the date that the accused received the Notice of Hearing. The accused may file a written response to the charges and/or intended disciplinary action outlined in the Notice of Intent with the Faculty Hearing Board chair prior to the hearing with a copy to the administrator proffering the charge (henceforth, plaintiff).

 
Hearing Procedure
 
The accused will have the option of having a hearing that is open or closed to the public, except as may be required by law.
 
The accused may consult with or retain legal counsel at his or her own expense to provide representation during the hearing. The Faculty Hearing Board shall be advised by Morehead State University’s Office of the General Counsel or its designee. The plaintiff may consult with or be represented by separate legal counsel contracted by the University to provide representation during the hearing.
 
The hearing proceedings will not be governed by formal, legal rules of procedure and evidence. The Faculty Hearing Board may consider any information that has probative value.
 
Statements to the Faculty Hearing Board, documentary evidence, and testimony by witnesses will be subject to requirements of civility and relevance.
 
The plaintiff or his/her counsel will have the right to call and cross-examine witnesses and to present documents and other evidence supporting the charges in the Notice of Intent to Discipline or the Notice of Intent to Remove for Cause.
 
The accused or his/her counsel will have the right to call and cross-examine witnesses and to present documents and other evidence disputing the charges in the Notice of Intent to Discipline or the Notice of Intent to Remove for Cause.
 
The plaintiff, or his/her counsel, and the accused, or his/her counsel, will have the right to confront and cross-examine each other's witnesses.
 
The Chair of the Faculty Hearing Board may restrict redundant testimony in the interest of ensuring an efficient hearing process.
 
Any individual scheduled to appear as a witness, with the exception of the accused and the plaintiff, will not be present in the hearing room except when testifying.
 
A written record of appearances and sworn testimony of the concerned parties and witnesses will be maintained.
 
The written record will include the Notice of Intent to Discipline or the Notice of Intent to Remove for Cause and if applicable the accused's response to the charges and/or intended disciplinary action outlined in the Notice of Intent.
 
A verbatim record of the hearing will be recorded by a court reporter and may be transcribed as requested. The recording and transcription will be provided at no cost to the accused upon request.

The burden of establishing a preponderance of the evidence for the charges rests at all times with the plaintiff.
 
The following hearing agenda will apply:
 
A reading, by the Chair of the Faculty Hearing Board, of the charges proffered by the plaintiff and the response to the charges by the accused;
 
Presentation of evidence by the plaintiff or his/her counsel supporting the charges;
 
Presentation of evidence by the accused or his/her counsel refuting the charges;
 
Presentation of rebuttal evidence as may be appropriate;
 
Summation or statement not to exceed 30 minutes by the accused or his/her counsel; and
 
Summation or statement not to exceed 30 minutes by the plaintiff or his/her counsel.
 
At the conclusion of the hearing, the Faculty Hearing Board will go into closed session to discuss the evidence presented at the hearing and to vote on whether there is a preponderance of the evidence for the charges proffered by the plaintiff. The Faculty Hearing Board may request the presence of the General Counsel at any time during the deliberations.
 
The Faculty Hearing Board will produce a written report of the board's "findings of fact" (evidence that the Faculty Hearing Board believes to be true) and "conclusions of law" (application of facts to the legal standard) based upon the record considered as a whole, and recommendations regarding disciplinary action. The report will also include the vote count regarding the charges. Dissenting minority opinions shall be included in the report.
 
Copies of the Faculty Hearing Board’s report will be sent to the President, the Provost and Vice President for Academic Affairs, the Dean of the accused's college, the plaintiff, and the accused.
 
The accused may elect to respond in writing to the Faculty Hearing Board’s decision and shall file such response with the President within 10 business days of the Faculty Hearing Board’s decision. Copies shall be sent to the Provost and Vice President for Academic Affairs and to the plaintiff.
 
The President will review the Faculty Hearing Board’s report and, if any, the accused's response, and will determine whether to:
 
Dismiss the matter altogether, thereby terminating the disciplinary process;
 
Refer the matter to the Dean of the accused's college for issuance of an oral or written reprimand by the Dean, in which case the Dean's action will terminate the disciplinary process; or
Proceed with a disciplinary action no greater than the intended disciplinary action outlined in the Notice of Intent. If the disciplinary action that the President decides upon is not removal for cause, then the President will issue a signed, written Final Determination of Disciplinary Action to be sent to the accused. A copy shall be sent to the Provost, Dean and Office of Human Resources. If the President determines that removal for cause should occur, he/she shall proceed as outlined below for a hearing at the Board of Regents on the record.
 
HEARINGS BEFORE THE BOARD OF REGENTS (BOR)
 
A hearing before the Board of Regents may be an evidentiary hearing or a hearing on the record from the FHB hearing. An abbreviated hearing before the Board of Regents shall occur (1) if the accused has responded to the charges for removal and not requested a hearing or (2) if the accused has failed to respond to the removal charges and failed to ask for a hearing.
 
If the accused requested an evidentiary removal hearing before the Board of Regents, rather than the Faculty Hearing Board, the President shall notify the Chair of the Board of Regents of the request for an evidentiary hearing. The President shall proceed as outlined above in the Response to Notice of Intent to begin the process of the evidentiary hearing.
 
If the disciplinary action is removal for cause, and the evidentiary hearing has been held before the Faculty Hearing Board the President will forward, to the Board of Regents, the complete record of the Faculty Hearing Board including the Faculty Hearing Board’s Findings of Fact and Conclusions of Law, any additional response filed by the accused, the transcript of the FHB Faculty Hearing Board hearing, and the President’s decision.
 
If the accused has (1) responded to the charges but declined a hearing, the President will forward to the Board of Regents the Notice of Intent to Remove for Cause and intended disciplinary action and the accused’s response to the Board of Regents for abbreviated hearing; if (2) the accused has failed to respond and failed to request a hearing, the President shall forward to the Board of Regents the Notice or Intent to Remove for Cause and intended disciplinary action.
 
A. PROCEDURE FOR AN EVIDENTIARY HEARING AT THE BOARD OF REGENTS
 
The Board Chair shall provide the accused with a written, signed notice of either a special meeting called for the purpose of providing an evidentiary hearing on removal or of the next regularly scheduled meeting of the Board of Regents at which time the evidentiary hearing shall take place. The hearing shall be not less than twenty (20) business days from the date that notice is delivered to the accused.
 
No later than ten (10) business days prior to the scheduled hearing date, the accused may file a written response to the charges and/or intended disciplinary action outlined in the Notice of Intent to Remove for Cause with the Board Chair at the President’s Office. A copy shall also be provided to the plaintiff.
 
The hearing shall be conducted in accordance with the Hearing Procedures set forth in this Policy as used by the evidentiary hearing before the Faculty Hearing Board.

At the conclusion of the hearing, the Board of Regents may go into closed session to discuss the evidence presented at the hearing and review the President’s Recommendation for Removal and the accused’s response. The Board may consult with its legal counsel as it deems appropriate during the process. The Board may (1) find in favor of removal, (2) reject removal and remand the matter to the President for recommended disciplinary action as determined by the Board, or
(3) reject the matter in its entirety. The Board will issue written findings of fact and conclusions of law in support of its decision and take final action on the decision in open session.
 
The President shall inform the accused in writing of the final action of the Board of Regents. A copy shall be sent to the Provost and Vice President for Academic Affairs, Dean and Office of Human Resources. The informing shall occur within 10 business days of the Board of Regent’s decision.
 
B. PROCEDURE FOR A HEARING ON THE RECORD AT THE BOARD OF REGENTS
 
If the accused has had an evidentiary hearing before the Faculty Hearing Board, the Board of Regents shall provide a de novo hearing on the record produced at the Faculty Hearing Board level, including all exhibits, all charges, and all responses. The Board Chair shall provide the accused with written, signed notice of either a special meeting or of the next regularly scheduled meeting of the Board of Regents when the issue of removal shall be brought before the Board. The hearing shall not be less than twenty
(20) business days from the date of notice.
 
The Board may retire into Executive Session to consider the case and review all the materials. The Board of Regents may consult with its legal counsel as it deems appropriate during the process. The Board of Regents shall take final action upon the issue of removal only in open session.
 
The Board of Regents may:
 
Dismiss the matter altogether, thereby terminating the disciplinary process;
 
Refer the matter to the Dean of the accused's college for issuance of an oral or written reprimand, in which case the action will terminate the disciplinary process;
 
Proceed with disciplinary action other than removal for cause, in which case the President will issue a signed, written Notice of Disciplinary Action to be sent to the accused; or
 
Proceed with removal for cause, thereby terminating the disciplinary process.
 
The President shall inform the accused of the final action of the Board of Regents in writing. A copy shall be sent to the Provost and Vice President for Academic Affairs, Dean and Office of Human Resources.
 
C. ABBRIEVIATED HEARING AT THE BOARD OF REGENTS
 
If the accused responds to the President’s Notice of Intent to Remove and Recommendation for Removal for cause, but declines a hearing on the matter, the President shall forward to the Chair of the Board of Regents the President’s Notice of Intent to Remove and Recommendation for Removal with cause as well as the accused’s response for consideration and action by the Board.

 
If the accused has neither filed a response nor requested a hearing, the President shall forward to Chair of the Board of Regents the President Notice of Intent to Remove and Recommendation for Removal.
 
In both such cases, the Board Chair shall provide the accused with written, signed notice of either a special meeting or of the next regularly scheduled meeting of the Board of Regents when the issue of removal shall be brought before the Board. The hearing shall not be less than twenty
(20) business days from the date of notice.
 
At a special or regular meeting of the Board of Regents, the Board may go into executive session to discuss and review the President’s Notice of Intent to Remove and Recommendation for Removal and the response of the accused, if any.  The Board may consult with its legal counsel as it deems appropriate during the process. The Board of Regents shall take final action upon the issue of removal only in open session.
 
The Board of Regents may:
 
Dismiss the matter altogether, thereby terminating the disciplinary process;
 
Refer the matter to the Dean of the accused's college for issuance of an oral or written reprimand, in which case the action will terminate the disciplinary process;
 
Proceed with disciplinary action other than removal for cause, in which case the President will issue a signed, written Notice of Disciplinary Action to be sent to the accused; or
 
Proceed with removal for cause, thereby terminating the disciplinary process.
 
In all cases, the President shall inform the accused of the final action of the Board of Regents in writing within ten (10) days of the Board’s decision. A copy shall be sent to the Provost and Vice President for Academic Affairs, Dean and Office of Human Resources.
 
RESIGNATION
 
At any point in the disciplinary process, the accused may submit his or her resignation, thereby terminating the disciplinary process.
 
EXTENSION OF TIME
 
Prior to the expiration of any time limit stated in this policy, an extension may be requested of and granted by the President.
 
EXCEPTIONAL CIRCUMSTANCES
 
If a situation arises during the disciplinary process that is not covered in this policy, then the Provost/ Provost and Vice President for Academic Affairs or his/her designee and the Chair of the Faculty Rights and Responsibilities

Committee or his/her designee will meet to discuss a mutually acceptable solution. If the situation arises during a hearing, then the chair of the board hearing the case will rule.